A ruling raising the bar for federal prisoners who seek sentence reductions based on the COVID-19 pandemic is not expected to deter an interest in compassionate release.

The U.S. Court of Appeals for the Third Circuit said in a precedential ruling Thursday that Francis Raia is not entitled to modification of his three-month prison sentence because he failed to exhaust administrative remedies before seeking compassionate relief. But defense lawyers think the ruling still leaves room for others to successfully seek sentence modifications.

The administrative procedure in question includes filing a petition with the Bureau of Prisons, and waiting 30 days for a response before going to court, a formality that Raia, a former Hoboken city counsel candidate convicted of voter fraud, failed to observe.

Interest in compassionate release has grown with the arrival of the novel coronavirus, which has prompted fears that jails will become "tinderboxes for infectious disease," as one federal judge put it.

"Thirty days in this pandemic can mean a lifetime," said Stephen Turano, a criminal defense lawyer in Newark. "The argument people have been making is that people who are relatively healthy, but have certain risk factors for disease, are more likely to get [COVID-19] and when they get it, can't fight it off. By keeping them incarcerated and asking them to wait 30 days—well, they could be dead in 30 days."

Prisoners may be able to sidestep the 30-day requirement based on vulnerability to the coronavirus because the ruling fails to address a 1992 U.S. Supreme Court case, McCarthy v. Madigan, allowing prisoners to bypass administrative procedure, said Christopher Adams, chairman of the criminal defense and regulatory practice group at Greenbaum, Rowe, Smith & Davis in Woodbridge. The 1992 case found exceptions to the 30-day requirement where such a waiting period would prejudice the subsequent court action, where the administrative process lacks authority to grant adequate relief, and where pursuing the administrative remedy would expose the petitioner to undue prejudice.

"I will continue to make these applications to district court. I would encourage people to try," said Adams. "Raia doesn't close the door to compassionate relief applications, even when the administrative remedy is not observed. I admit, the circuit, in Raia, makes it much harder, but it doesn't close the door completely."

Adams says the Raia case "factually and procedurally was probably not the best case to go before the Third Circuit." He called the appeals court ruling "disappointing, because it disregards the exceptions" set out in McCarthy v. Madigan.

"What more prejudice could there be than being stricken with a novel virus that, under certain circumstances, can kill. It just dismisses the exceptions as if they're not there," Adams said.

Prosecutors said Raia was running for Hoboken City Council in 2013 when he instructed campaign workers to pay $50 to voters who cast votes for his slate of candidates, and for a referendum to weaken the city's rent control law. U.S. District Judge William Martini sentenced Raia to three months in jail, but the U.S. Attorney's Office, which sought a sentence of 27 months, appealed. That appeal is still pending.

Raia began serving his sentence on March 3, but quickly filed an application with the Bureau of Prisons for compassionate relief in light of the COVID-19 pandemic. He claims he is at heightened risk because he is 68 and suffers from Parkinson's disease, diabetes, and heart trouble. He filed a compassionate relief motion in District Court before 30 days passed.

Martini denied the motion, concluding he lacked jurisdiction because of the pending appeal. But he said in a footnote that he would have otherwise granted the motion and released Raia to home confinement.

Raia did not appeal Martini's ruling, but filed a motion asking the Third Circuit to decide his compassionate-release motion. Alternately, he asked for jurisdiction to be returned to District Court by dismissing the government's appeal without prejudice under R. 3(a)(2) of the Federal Rules of Appellate Procedure. The appeals court said that rule is a sanction for failure to comply with procedural rules, but the government has not failed to do anything, the panel said.

The panel said it could remand the case to district court for reconsideration of Raia's compassionate-release request, but that would be futile because of his failure to comply with the exhaustion requirement.

On Monday, Lee Vartan of Chiesa, Shahinian & Giantomasi in West Orange, representing Raia, filed a motion for clarification of the Third Circuit ruling. He asks the court to address whether federal law requires either exhaustion of administrative remedies or the lapse of 30 days, or both. The statute says the two conditions are alternative grounds permitting a motion for compassionate relief in district court, but the court decision states that both are required.

Vartan's motion said the government did not oppose his request for clarification.

Assistant U.S. attorneys Mark Coyne and Steven Sanders represented the government. A spokesman for the U.S. Attorney's Office declined to comment.

The COVID-19 pandemic has spurred efforts nationwide to win the release of inmates in order to minimize the impact of the virus in correctional institutions. In March, the New Jersey Supreme Court issued an order directing the release of certain low-risk inmates from county jails in response to concerns about the spread of coronavirus in those facilities.

On April 1, a judge in the Eastern District of Pennsylvania granted immediate release of Jeremy Rodriguez after finding that his diabetes makes him twice as likely to die if he contracts COVID-19. Rodriguez, an inmate in a federal prison in Elkton, Ohio, is in year 17 of a 20-year sentence for drug distribution and unlawful firearm possession. In that case, the court found the compassionate-release motion was properly before it because Rodriguez filed it 30 days after his request for compassionate release was received by the warden of his detention facility.

Meanwhile, a class action pending in the Eastern District of New York seeks the immediate release of 537 medically vulnerable individuals from the Metropolitan Detention Center in Brooklyn.

And on March 30 the American Civil Liberties Union and public defenders filed a class action in federal court in Washington, D.C., on behalf of inmates over conditions that are likely to facilitate the spread of the virus. That suit requests the release of "as many prisoners as possible" in the D.C. correctional facilities under local law, demands for medical equipment for inmates and staff, and the appointment of an independent monitor with medical expertise to make sure the conditions are met.